IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006570 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Purple Heart.

2.  The applicant states, in effect, he was wounded in action by a hostile force when he sustained a shrapnel wound to his right thigh from a grenade while serving in Vietnam in 1969.  He also states that he applied for the Purple Heart in 1990, but was told he had to have a witness statement.  The applicant further states that, after 39 years and a long search, he found a witness who provided him a notarized witness statement.

3.  The applicant provides a notarized statement, dated 24 February 2008.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military service records show he enlisted and entered active duty in the Regular Army for a period of 3 years on 30 August 1967.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 31 (Foreign Service) shows he served overseas in the U.S. Army Pacific (USAPAC) in the Republic of Vietnam (RVN) from
31 August 1968 through 28 August 1969.  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to Company A, 1st Battalion, 7th Cavalry, 1st Air Cavalry Division in the RVN, from 5 September 1968 through 23 August 1969, with principal duty as a Platoon Sergeant in duty MOS 11B4O.  Item 39 (Campaigns) shows that he participated in the Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, and 11th (as then) unnamed campaign.

4.  There are no orders in the applicant’s military service records that show he was awarded the Purple Heart.  There also is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.

5.  A search of the U.S. Army Human Resources Command (USA HRC), Awards and Decorations Computer Assisted Retrieval System (ADCARS) for the Vietnam Conflict failed to produce orders pertaining to award of the Purple Heart to the applicant during the period of his service in the RVN.

6.  The applicant’s military service records contain a Standard Form (SF) 89 (Report of Medical History), dated 6 May 1970, completed by the applicant for the purpose of his medical examination prior to separation.  This document fails to show any entry that refers to an injury or wound sustained by the applicant while serving in the RVN.  This document also shows the applicant and attending physician placed their signatures on the form certifying the accuracy of the information on the document.

7.  The applicant’s military service records contain a SF 88 (Report of Medical Examination), dated 6 May 1970, completed by a physician in the medical corps at the time.  In the “Clinical Evaluation” section, Item 37 (Lower Extremities), the physician placed a checkmark in the “Normal” column.  This document also shows that the physician indicated the applicant was qualified for separation and placed his signature on the document.

8.  The applicant’s military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 1 June 1970.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Air Medal, National Defense Service Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle Bar.  The DD Form 214 also shows the applicant was honorably released from active duty on 1 June 1970 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  At the time, he was credited with completing 2 years, 9 months, and 2 days net service this period; 0 years,
2 months, and 28 days other service; 3 years, 0 months, and 0 days total service; 2 years, 9 months, and 2 days total active service; and 0 years, 11 months, and 28 days foreign service.

9.  In support of his application, the applicant provides a 2-page notarized statement, dated 24 February 2008, provided by Michael L. M_____.  In this document, Mr. M_____ provides a summary of his military service in the U.S. Army that began on 28 May 1968 and of his assignment to the 7th Cavalry (Airmobile) in the RVN.  Mr. M_____ states that the applicant was his squad leader and, in pertinent part, he describes a particular mission (sometime in 1969) during which their squad came in contact and engaged the enemy near either Quan Loe or Phuc Vinh (RVN).  He states that the applicant was walking behind him when the enemy threw a grenade that wounded the applicant in the lower extremities.  He also states the combat medic dressed the applicant’s wounds and that the applicant decided to remain in the field with his squad.  Mr. M_____ concludes by stating the applicant should be awarded the Purple Heart for the wounds he sustained during this battle.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

11.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show award of the Purple Heart because he sustained a shrapnel wound to his right thigh from a grenade while serving in Vietnam in 1969, he was treated in the field by a combat medic, and a former Soldier who was serving with him at the time provides a notarized witness statement attesting to the incident.

2.  The sincerity of the comments in the witness statement submitted in support of the applicant’s application for award of the Purple Heart is not in question.  However, this documentation provides insufficient evidence to support the applicant’s claim.

3.  There is no evidence in the applicant’s military service records that shows he was awarded the Purple Heart.  There also is no medical evidence in his records that shows he was wounded or treated for wounds as a result of hostile action. It is also noted the applicant failed to indicate at the time of his separation medical examination that he had sustained a shrapnel wound to his right thigh or that he was treated for the wound.  Moreover, the applicant's name is not listed on the Headquarters, Department of the Army, The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.  Therefore, in view of all of the foregoing, notwithstanding the witness statement provided, there is insufficient documentary evidence to support the applicant’s claim to the Purple Heart in this case.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006570



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ABCMR Record of Proceedings (cont)                                         AR20080006570



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